CASE OF KARGINA AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF KARGINA AND OTHERS v. RUSSIA

(Applications nos. 27670/07 and 5 others – see appended list)

JUDGMENT
 

STRASBOURG

9 June 2020

This judgment is final but it may be subject to editorial revision.

In the case of Kargina and others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Helen Keller, President,
María Elósegui,
Ana Maria Guerra Martins, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 27670/07, 41481/09, 33296/10, 59998/10, 69840/10 and 74493/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates by Russian nationals indicated in the appended table (“the applicants”);

the decision to give notice to the Russian Government (“the Government”) of the complaint concerning the alleged lack of public pronouncement of the judgments and declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 5 May 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

The issue in this case is whether judgments in the applicant’s civil proceedings were “pronounced publicly”, given that only their operative part was read out in open court.

THE FACTS

1.  The applicants’ details are set out in the appended table.

2.  The Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.Application no. 27670/07 (Ms Kargina)

4.  Since 1987 the applicant had served under a contract in the Russian army units located at the Baykonur complex in Kazakhstan. In 2006 her military unit was disbanded following the reduction of Russian military formations in the area. She continued to be formally attached to other military units and to receive her pay without actually occupying a post. That situation continued beyond her reaching the maximum age for carrying out military service pending her provision with housing in Russia, as provided for by domestic law. During this time the payment of certain allowances was stopped. In December 2008 she was dismissed from military service.

5.  The applicant brought several actions challenging the non‑payment of allowances before her dismissal (the first set of proceedings) and her employer’s compliance with the obligation to provide her with housing and respect other rights related to her dismissal (the second and third sets of proceedings). Her claims were examined by the 26th Garrison Military Court in Baykonur in open hearings held in her presence. At the close of the hearings the court read out the operative part of its judgments, stating that her claims were dismissed (judgments of 6 October 2008 and 20 January 2009) or allowed in part (judgment of 26 March 2009). It later prepared and served the complete judgments on her. It held that the allowances were only to be paid to those who occupied posts, which the applicant had not, that she had been provided with housing in the Moscow region, and that her other rights had been respected. It also ordered a 15% increase in her severance pay.

6.  She appealed, arguing, inter alia, that the court had failed to pronounce its judgments publicly, as required by Article 6 of the Convention. Her appeals were dismissed by the 3rd Circuit Military Court, which held that the first-instance court had acted in accordance with domestic law. The applicant was not present at the appeal hearings, which took place in the Moscow region on 14 January, 6 May and 24 June 2009. A military prosecutor (who sought the dismissal of the appeals) was present at the two latter hearings. According to the applicant, the appellate court only read out the operative part of its judgments. According to the Government, it read out the two earlier judgments in their entirety, and the case file concerning the most recent proceedings was destroyed upon expiry of the statutory storage time-limit.Applications nos. 41481/09 (Mr Grigoryev and Others) and 33296/10 (Mr Bondarenko and Others)

7.  The applicants are retired servicemen. They brought proceedings challenging the amount of their pensions (see the appended table). Their representative was present at the open hearings held by the Pskov Town Court. The court only read out the operative part of its judgments at the close of the hearings. The applicants appealed, arguing, inter alia, that the court had failed to publicly pronounce its judgments (which were prepared and served on the applicants later), as required by Article 6 of the Convention. Their appeals were dismissed by the Pskov Regional Court, which stated that the complaint was unsubstantiated. Neither the applicants nor their representative were present at the appeal hearings. The appellate court only read out the operative part of its judgments.Application no. 59998/10 (Ms Turova)

8.  The applicant was a law student at the Nizhniy Novgorod Academy of the Ministry of Interior of the Russian Federation, a higher education institution. In April 2007, while in her third year, she was expelled for failure to comply with the requirements of the curriculum. She brought proceedings challenging her expulsion. On 12 January 2010 the Ordzhonikidzevskiy District Court of Perm held an open hearing and dismissed her claim. Her representative did not attend the hearing, having asked the court to examine the case in her absence. The applicant was also absent. The applicant’s representative was present at a hearing on 30 March 2010 held by the Perm Regional Court, which dismissed an appeal by the applicant against the first-instance court’s judgment. It does not appear from the material in the case file that the applicant complained in her appeal about the District Court’s alleged failure to pronounce its judgment publicly. Both courts only read out the operative part of their judgments at the close of their hearings. The complete judgments were prepared and served on the applicant later.Application no. 69840/10 (Ms Ustinova)

9.  The applicant served in the Russian Army under a contract for seven years and nine months until her dismissal in December 2009. She brought proceedings complaining that certain benefits in connection with her dismissal, such as the provision of clothing, additional days of annual leave and professional retraining, had not been provided to her. On 5 April 2010 the Perm Garrison Military Court held a hearing in her presence and dismissed her claim.

10.  The applicant appealed. In her additional statement of appeal she complained that only the operative part of the first-instance court’s judgment had been read out at the hearing. On 21 May 2010 the Privolzhsk Circuit Military Court dismissed her appeal, without addressing the above complaint, at a hearing held in Samara. The applicant was not present or represented. According to the applicant, the appellate court only read out the operative part of its judgment at the hearing. According to the Government, the case file was destroyed upon expiry of the statutory storage time-limit.Application no. 74493/10 (Mr Savinov)

11.  In 1997 criminal proceedings were brought against the applicant (the founder and managing director of a commercial organisation) under Article 204 of the Criminal Code (commercial bribery), and he was remanded in custody for more than two months. In 1999 the criminal proceedings against him were terminated for lack of the constituent elements of a crime. In 2010 he brought proceedings for compensation in respect of non‑pecuniary damage suffered as a result of the criminal proceedings against him. On 26 March 2010 the Oktyabrskiy District Court of Barnaul held an open hearing in his presence and dismissed his claim. On 12 May 2010 the Altay Regional Court examined an appeal by him against that judgment in the presence of his representative. It quashed the first-instance judgment and allowed his claim, ordering the Ministry of Finance of the Russian Federation to pay him 10,000 roubles in respect of non‑pecuniary damage. Only the operative parts of the judgments were read out by both courts at the close of their hearings.

12.  In an application for supervisory review of the appellate court’s judgment of 12 May 2010, the applicant complained, inter alia, that neither court had pronounced its judgments publicly. His application was dismissed by the Altay Regional Court on 8 October 2010.

RELEVANT LEGAL FRAMEWORK

13.  The relevant domestic law is summarised in the Court’s judgment in the case of Malmberg and Others v. Russia (nos. 23045/05 and 3 others, §§ 30-41, 15 January 2015).

THE LAWJOINDER OF THE APPLICATIONS

14.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

15.  The applicants complained that the judgments in their civil cases had not been “pronounced publicly”, as required by Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”Submissions by the partiesThe Government

16.  The Government submitted that the courts in the applicants’ civil proceedings had acted in accordance with domestic law, which at the material time did not provide for the compulsory publication of judgments or for their being made available to persons other than participants in the proceedings. That problem had been identified in the Court’s in the case of Ryakib Biryukov v. Russia (no. 14810/02, ECHR 2008).

17.  The Government acknowledged the applicability of the finding in the case of Ryakib Biryukov to the present case, submitting that as a result of the enactment of Law no. 262‑FZ of 22 December 2008 (entered into force on 1 July 2010), which provided for access to information about the activities of the courts, including through the compulsory publication of judgments online, the requirement under Article 6 § 1 of the Convention for judgments to be pronounced publicly had been complied with. The authorities had thus taken measures to prevent the same violation as that found in the Ryakib Biryukov case. The Government submitted that, given that the enactment of the new legislation had reasonably required a significant period of time, the State should not be held responsible for failure to comply with the requirement to pronounce judgments publicly in the applicants’ proceedings.

18.  The Government noted that the courts had not received any requests for access to the judgments in the applicants’ cases from third parties not participating in the proceedings. It would have been open for them to appeal to the courts against any refusal to give them such access, pursuant to the provisions of the Code of Civil Procedure, as interpreted by the Constitutional Court of the Russian Federation in decision no. 1‑P of 20 February 2006, had their rights and duties been determined in the judgments.

19.  The Government further submitted that the applicants had not suffered a “significant disadvantage” within the meaning of Article 35 § 3 (b) of the Convention.

20.  The Government concluded that the applications should be declared inadmissible as manifestly ill-founded.The applicants

21.  The applicants maintained their complaints.

22.  Ms Kargina argued that her case had not been “duly considered by a domestic tribunal” within the meaning of Article 35 § 3 (b) of the Convention because her complaint about the failure to publicly pronounce the judgments had not been duly examined by the courts. The “significant disadvantage” criterion should not therefore, in her view, apply to declare her application inadmissible. She also added that the Government had not submitted any evidence in support of their assertion that the appellate court had read out its judgments in their entirety, such as transcripts (which in fact had not been prepared at the time in accordance with the appellate courts’ general practice), or statements by judges or secretaries. There had been no general system in place for establishing the date on which reasoned judgments had been prepared. The relevant information was in the possession of the authorities, which therefore bore the burden of proof. Even assuming that the appellate court had read out its judgments succinctly, this would not have corrected the lack of public pronouncement of the detailed reasoned judgments of the first-instance court. Furthermore, Law no. 262‑FZ had entered into force later than the proceedings in her case, and the violations of the Convention in her proceedings had post-dated the delivery of the Ryakib Biryukov judgment.Admissibility

23.  The Court must determine whether the applications are admissible under Article 35 of the Convention, as amended by Protocol No. 14 to the Convention, which entered into force on 1 June 2010. In particular, Article 35 § 3 (b) reads as follows:

“3.  The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b)  the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

24.  The Court notes that, in accordance with Article 35 § 3 (b) in fine, a case can be declared inadmissible only if it has been “duly considered by a domestic tribunal”. The Court finds that in the present case the answer to the question whether the case was duly considered by a domestic tribunal is closely related to the substance of the complaint under Article 6 of the Convention. It therefore joins the examination of this issue to the merits (see Fomin v. Moldova, no. 36755/06, § 20, 11 October 2011).

25.  The Court notes that the applications are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.Merits

26.  The Court has previously found a violation of Article 6 § 1 of the Convention by the respondent State on account of the lack of public access to a judgment in a civil case in which only the operative part of the judgment was read out in open court and the full text of the judgment was prepared later (see Ryakib Biryukov, cited above, §§ 28-46). In the case concerned, only participants to the proceedings and their representatives were entitled under domestic law to become acquainted with the full text of the judgment. As the publicity of the judgment was not ensured, the reasons on which the court based its judgment were inaccessible to the public.

27.  In Ryakib Biryukov the applicant’s civil proceedings were regulated by the 1964 Code of Civil Procedure and the clerical work of the courts was regulated by instructions issued in 1999 by the Courts Administration Office at the Supreme Court of the Russian Federation (ibid., §§ 14-24). In the more recent case of Malmberg and Others v. Russia (nos. 23045/05 and 3 others, 15 January 2015) – as in the case at hand – the domestic proceedings were regulated by the 2002 Code of Civil Procedure and the clerical work of the domestic courts was regulated by instructions of the Courts Administration Office in place since 2003 and 2004, which did not differ from the previous legislation as far as public access to judgments was concerned (see Malmberg and Others, cited above, §§ 30-40).

28.  Turning to the facts of the present applications and taking into account the proceedings as a whole (ibid., § 53), the Court observes that the first-instance courts in the applicants’ cases, as well as the appellate court that delivered a new decision with regard to Mr Savinov’s claims (the Altay Regional Court, see paragraph 11 above), only read out the operative part of their judgments (stating whether the applicants’ claims were allowed or dismissed) at the close of their hearings. It does not appear from the material before the Court, and it was not suggested by the parties, that those judgments were made any more public by the appellate courts which upheld them. As regards the Altay Regional Court’s judgment, it was the final decision in Mr Savinov’s proceedings (see Martynets v. Russia (dec.), no. 29612/09, 12 December 2008).

29.  The Government acknowledged that the Court’s finding in the case of Ryakib Biryukov was applicable to the present case. Their sole argument in support of their conclusion that the State should not be held responsible for failure to ensure the public pronouncement of the impugned judgments in the applicants’ proceedings was that the enactment of the new law to prevent violations similar to those identified in Ryakib Biryukov had required significant time. The Court, however, reiterates that the events complained about in the case at hand took place before that legislation entered into force on 1 July 2010 and were therefore not impacted by it (see Malmberg and Others, cited above, § 56).

30.  The Government’s observation about access to the full text of a judgment by third parties whose rights and duties were determined in the judgment was of a general nature and was not shown to relate to the applicants’ proceedings. Moreover, the Court has already stated that the possibility of granting those whose rights and lawful interests had been infringed access to judgments was insufficient to comply with the publicity requirement (ibid., § 55).

31.  In view of the foregoing the Court concludes that, prior to entry into force of Law no. 262-FZ, there were no means of ensuring publicity of the judgments adopted in the applicants’ cases other than by reading out the operative part in open court. Therefore the courts’ reasoning, which would have explained why the applicants’ claims had been allowed or dismissed, was inaccessible to the public. The object pursued by Article 6 § 1 in this context – that is, to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial – was not achieved in the applicants’ proceedings.

32.  The Court therefore considers in the circumstances that the present case has not been “duly considered by a domestic tribunal” (compare Dudek v. Germany (dec.), nos. 12977/09, 15856/09, 15890/09, 15892/09 and 16119/09, 23 November 2010, and Fomin, cited above, § 34). Accordingly, the criterion introduced in Protocol No. 14 to the Convention is not applicable in the present case and the Government’s objection regarding the alleged lack of significant disadvantage should be dismissed.

33.  The Court finds that there has been a violation of Article 6 § 1 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

35.  The applicants made the following claims in respect of non‑pecuniary damage. Ms Kargina claimed 3,000 euros (EUR), Mr Grigoryev, Mr Bondarenko and other applicants in applications nos. 41481/09 and 33296/10 claimed EUR 1,000 each, Ms Ustinova claimed EUR 1,500, and Mr Savinov claimed EUR 51,000. Ms Turova stated that the finding of a violation of her right under Article 6 § 1 of the Convention would be sufficient just satisfaction.

36.  The Government stated that no sum should be awarded to the applicants because their rights under the Convention had not been violated. Furthermore Mr Savinov’s claim was excessive and unreasonable and lacked connection to the issue before the Court.

37.  The Court considers that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicants.Costs and expenses

38.  Ms Kargina also claimed EUR 29.66 for court fees and postal and copying expenses incurred before the domestic courts, EUR 971.15 for her representation by Mr V.V. Fedoseyev before the Court, EUR 36.24 for postal expenses incurred before the Court, as well as EUR 3,000 for her own work in the proceedings before the domestic courts and the Court. Ms Ustinova claimed approximately EUR 22 for postal expenses incurred before the Court.

39.  The Government contested Ms Kargina’s claims and agreed with Ms Ustinova’s claim in the event of the finding of a violation of her rights under the Convention.

40.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award Ms Kargina the sum of EUR 996.15 for costs and expenses incurred before it, plus any tax that may be chargeable. That sum consists of EUR 971.15 for her representation by Mr V.V. Fedoseyev and EUR 25 for postal expenses. The Court further awards Ms Ustinova’s claim in full, plus any tax that may be chargeable.Default interest

41.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications;Decides to join to the merits the Government’s objection regarding the alleged lack of significant disadvantage and dismisses it;Declares the applications admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;Holds

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)        to Ms Kargina EUR 996.15 (nine hundred and ninety-six euros and fifteen cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(ii)      to Ms Ustinova EUR 22 (twenty-two euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 9 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Helen Keller
Deputy RegistrarPresident

List of applications:

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth, Place of Residence

Represented by

Domestic proceedings

Court, Date of a Judgment

1

27670/07

Kargina v. Russia

08/06/2009

Olga Petrovna KARGINA

1963, Baykonur

Viktor Viktorovich FEDOSEYEV, a lawyer practising in Moscow

26th Garrison Military Court, 06/10/08

3rd Circuit Military Court, 14/01/09

26th Garrison Military Court, 20/01/09

3rd Circuit Military Court, 06/05/09

26th Garrison Military Court, 26/03/09

3rd Circuit Military Court, 24/06/09

2

41481/09

Grigoryev and Others v. Russia

02/07/2009

Valeriy Vasilyevich GRIGORYEV

1953, Velikiye Luki

Boris Mikhaylovich POPIK

1939, Velikiye Luki

Yuriy Semenovich LEBEDEV

1938, Velikiye Luki

Denis Yevgenyevich KOZYREV, a lawyer practising in the Pskov region

Pskov Town Court, 20/11/08

Pskov Regional Court, 17/02/09

3

33296/10

Bondarenko and Others v. Russia

17/05/2010

Oleg Fedorovich BONDARENKO

1941, Velikiye Luki

Fedor Karpovich DENISOV

1953, Velikiye Luki

Aleksey Petrovich ZHUK

1942, Velikiye Luki

Vyacheslav Petrovich KOROLEV

1936, Velikiye Luki

Vasiliy Panteleyevich KRAVCHENKO

1947, Pereslegino

Vyacheslav Ivanovich MIKHAYLOV

1939, Velikiye Luki

Yevtikhey Mironovich SAVELYEV

1941, Velikiye Luki

Vitaliy Kalenyevich SAVCHUK

1936, Velikiye Luki

Vladimir Viktorovich TISHEVSKIY

1948, Velikiye Luki

Valeriy Fedorovich ULYANOV

1938, Velikiye Luki

Valentin Filippovich TSVETKOV

1938, Velikiye Luki

Denis Yevgenyevich KOZYREV, a lawyer practising in the Pskov region

Pskov Town Court, 21/09/09

Pskov Regional Court, 01/12/09

As regards Mr V.P. Kravchenko:

Pskov Town Court, 06/10/09

Pskov Regional Court, 24/11/09

4

59998/10

Turova v. Russia

14/09/2010

Anastasiya Andreyevna TUROVA

1987, Perm

Ordzhonikidzevskiy District Court, 12/01/10

Perm Regional Court, 30/03/10

5

69840/10

Ustinova v. Russia

06/11/2010

Anzhela Vladimirovna USTINOVA

1968, Perm

Perm Garrison Military Court, 05/04/10

Privolzhsk Circuit Military Court, 21/05/10

6

74493/10

Savinov v. Russia

12/11/2010

Aleksey Viktorovich SAVINOV

1966, Barnaul

Igor Vladimirovich KUPTSOV, a lawyer practising in the Altay region

Oktyabrskiy District Court of Barnaul, 26/03/10

Altay Regional Court, 12/05/10

 

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